Regular Bail application are filed under Sections 437 and 439 of the Code of Criminal Procedure (CrPC). Jurisdiction of Session's Court and High Court is concurrent however as a matter of prudence its preferable to file the application first before the Trial Court and then approach High Court unless special circumstances exist.
Common grounds for grant of Bail
- Presumption of Innocence: A fundamental principle of criminal law, this assumes the accused is innocent until proven guilty, supporting the argument for bail to prevent pre-trial detention
- Strength of the Evidence: If the evidence against the accused is weak or circumstantial, this strengthens the case for bail, as detention should not be used to punish without solid evidence
- Risk of Flight or Absconding: Courts assess whether the accused poses a flight risk. Conditions like providing sureties or surrendering passports can mitigate this risk.
- Health and Age Considerations: If the accused has health issues or is elderly, this may be considered in favor of granting bail.
- Prolonged Incarceration: If the accused has been in custody for an extended period without trial, this can be a ground for granting bail.
Common grounds raised by State Public Prosecutor to oppose bail applications:
- Seriousness of the Offense
- Likelihood of Tampering with Evidence or Witnesses
- Risk of Absconding
- Repeat Offender or Criminal History
- Threat to Public Order or National Security
While bail is not explicitly a constitutional right, it is deeply connected to the protection of personal liberty under Article 21. Therefore courts consider Article 21 when evaluating bail applications. and balance the need to protect personal liberty with the requirements of a fair trial and public safety. It is imperative for the accused to instill confidence in his character before the court to sucessfully refute the common grounds of opposition by state.
